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Stout v. Stout

Decided: December 16, 1977.

LILLIAN STOUT, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
KENNETH STOUT, DEFENDANT-RESPONDENT/CROSS-APPELLANT



Allcorn, Morgan and Horn.

Per Curiam

This is an appeal by plaintiff wife and a cross-appeal by defendant husband in this matrimonial cause.*fn1

The evidence introduced at the contested hearing disclosed the following relevant facts. The parties were married in 1959. Four children, whose ages ranged at the time of the hearing from 9 to 16, were born of the marriage and they are

in plaintiff's custody under the terms of the judgment. One of the children, second from the oldest (age 14 1/2), was born with a physical defect. The parties differ only in their assessment of the extent of his disability, but apparently there is no disagreement that he requires special attention. Defendant is a high-school physical education teacher whose gross earnings as such are $19,358 a year. He also receives medical and hospital insurance, and dental and prescription medicine coverage for himself and his children. As a lieutenant colonel in the United States Army Reserve his gross income for the year 1975 was $7,467. It was estimated that his gross income as such officer for the year 1976 would be $3,729, the sharp decrease being explained by the fact that in the year 1975 there was a nonrecurrent situation which caused him to earn more than he would earn normally. His projected net income from both sources for the school year 1975-1976 was $15,575. However, since the school year itself is only ten months he could earn more by working during the summer months, if he can find employment.

Following the hearing before the trial judge and a subsequent application to modify the judgment, the attorney who represented plaintiff withdrew from that representation and present counsel was substituted.

The aforementioned hearing was held in September 1976 and the final judgment of divorce appears to have been signed on October 27, 1976. The relevant provisions of the final judgment provide for payment by defendant of $165 a week for support of plaintiff and the four children, of which sum $50 is for support of plaintiff. The payment of $50 a week to plaintiff is to terminate upon her death, remarriage or upon the sale of the marital home. Plaintiff is given the right to remain in said home and to use the furnishings for a period of two years from the date of the judgment, at which time the home is to be sold. By way of equitable distribution, the proceeds from the sale of the premises and furnishings are to be divided equally, except that a $1,300 arrearage owed by defendant is to be satisfied out of his share. Defendant

is required to repay a small loan to his teachers' pension fund and then liquidate his share and pay half the proceeds to plaintiff -- approximately $2,000. Defendant is also required to pay for medical expenses over $100 per child per year, and to maintain the medical, dental and pharmaceutical insurance coverage for each child. Finally, plaintiff's counsel was awarded a fee of $1,000 to be paid by defendant.

Basically, plaintiff's discontent arises from that portion of the final judgment which decrees that the marital residence be sold within two years and the proceeds be divided between the parties, as stated, and the cessation at that time of the payment of $50 a week as alimony to plaintiff.

We are of the view that plaintiff's contention on this point is well-founded, for two reasons. The first reason is concerned with the procedure followed by the trial judge in entering the final judgment. The second reason goes to the substance of the judgment itself in directing the sale of the premises and the cessation of plaintiff's alimony at the expiration of two years from the date of the judgment.

At the termination of the hearing the judge announced his conclusions orally, part of which was that "under the present circumstances and the income that has been testified to that has not been refuted, the court will award the sum of $165 a week support and alimony to be allocated in any fashion that you Counsel may determine." The judge then directed that plaintiff would have the right and sole use of the marital home and furnishings for a period of two years, and at the end of the two years the house would be listed for sale and the proceeds would be divided between the parties equally. The judge did not state as part of his conclusions, as already noted, that the wife's alimony was to be $50 or that defendant would no longer be responsible to pay alimony to her when the ...


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